BREAKING NEWS: If you are stupid enough to upload a video to YouTube in which you threaten to shoot specific police officers (whom you name and who are scheduled to testify in your upcoming criminal trial) you might be labeled a terrorist! At least that’s what an Appellate Court in Pennsylvania told Rashee Beasley last week. And while the decision seems to be the right one under Pennsylvania law based on the facts of this case, it may have far-reaching implications.

It seems Mr. Beasley, who was facing a number of drug, gun and related charges, decided to put his thoughts into words and uploaded a number of rap videos to YouTube with links to a Facebook page he managed under a pseudonym. The song in question “Fuck The Police” was written and performed with his co-defendant. Here’s the verse that the court focused on:

This first verse is for Officer Zeltner and all you FED
force bitches and Mr. Kosko can suck my dick for
knocking my riches.
Want beef, well cracker I’m wit it, that whole department
can get it.
All these soldiers in my committee gonna fuck over you
bitches, fuck the police bitch, I said it loud
The fuckin city can’t stop me
Ya’ll gonna need Jesus ta bring me down
And he ain’t fuckin wit you dirty devils,
We makin prank phone calls and as soon as you bitches
come we bustin heavy metal (sound of gunfire)
So now Kosko gonna chase me through these streets
and I’m a jam this rusty knife all in his guts and chop his
feet.

Officers Kosko and Zeltner were the arresting officers in Beasley’s pending cases. And it was naming them that apparently made this song cross the line from art to crime. After all, compare that verse to some of the lines from NWA’s hit “Fuck Tha Police”:

Ice Cube will swarm
On any motherfucker in a blue uniform
Just cause I’m from the CPT
Punk police are afraid of me, huh
A young nigga on the warpath
And when I’m finished, it’s gonna be a bloodbath
Of cops, dying in L.A
Yo Dre, I got something to say
Fuck Tha Police

[On a side note, yes that’s the same Ice Cube who’s now in all those family-friendly comedies and the Dre is Dr. Dre multimillinoaire owner of Beats headphones]

The direct naming of the officers in Beasley’s song is really the only difference between the two. Both songs go on to describe specific scenarios in which the rappers will use guns to kill police officers. But the court in Beasley’s case correctly focused on the intent of the “artist” as being the main cause why this was a terrorist threat against the named officers.

In 2015, the Supreme Court of the United States addressed the subject of Facebook posts as terroristic threats in Elonis v. United States. In that case, the defendant posted threatening comments on Facebook in response to people having viewed his posts. The jury convicted the defendant of terrorist threats after the trial court instructed that the Government needed to prove that a reasonable person would regard the defendant’s communications as threats. The Supreme Court found this jury instruction was error because it failed to consider the defendant’s mental state. The Court held that “[t]he mental state requirement must therefore apply to the fact that the communication contains a threat.” The Court sent it back to the trial court to determine whether there was evidence that Elonis knew he was communicating a threat and intended to do so.

Here, the court also dodged the greater issue of whether just posting violent lyrics would be enough to convey a terrorist threat because it said there was plenty of evidence that Beasley knew what he was doing and intended it to be heard by the police. All of that evidence came from Beasley himself:

We need not ponder whether deciding to broadcast songs or linking YouTube videos to one’s Facebook page generally indicates intent to communicate, because [Beasley]stated his intent by saying in his rap song: “My momma told me not to put this on C.D., but I’m gonna make this fuckin city believe me, so nigga turn me up.” [Beasley] chose not to listen to his mother because he wanted Officers Zeltner and
Kosko to hear his message, and they did. He successfully and intentionally communicated his threat…. Here, [Beasley]posted a rap song on YouTube that specifically threatened to kill Officers Zeltner and Kosko while Appellant had criminal charges pending against him in which these officers were going to testify.

80’s artists -Today’s terrorists?

The other argument that Beasley made as that he never “communicated” the threat to the officers since he only posted it on YouTube and Facebook and did not actually send it to the officers. This was a similar argument to one I made before the Georgia Supreme Court which involved a blogger making certain nasty statements about a person who was the subject of the blog. The Georgia Supreme Court ruled that repeatedly writing negatively about a person did not constitute stalking But that is the key: Here Beasley was not accused of stalking but of issuing a terrorist threat under section 2706 of the Pennsylvania Penal Code. And the law in Pennsylvania does not require a whole lot for you to get convicted of violating that statute.To be found guilty under that section, the Commonwealth must prove that 1) the defendant made a threat to commit a crime of violence, and 2) the threat was communicated with the intent to terrorize another or with reckless disregard for the risk of causing terror.” Beasley could not deny the first element and the court said the government had proven the second element by the evidence discussed above. As the court then pointed out:

“Neither the ability to carry out the threat, nor a belief by the person threatened that the
threat will be carried out, is an element of the offense. [Furthermore] a defendant does not need to intend to carry out the consequence of the threat to communicate a threat…. [Under the statute] [t]erroristic threats do not have to be communicated directly.”

So you don’t have to mean the threat or intend to carry it out; you don’t have to be able to actually carry out the threat; and the recipient of the the threat need not actually believe you can or will carry out the threat. You just have to make a violent threat with the intent to terrorize another or with reckless disregard of the risk of causing terror. This is a pretty expansive law that could very well capture a lot of innocent people and label them as domestic terrorists.

The First Amendment protects a wide swath of expression that many of us may find offensive, distasteful or even repugnant. (After all nice, appreciated, heart-warming speech doesn’t need protection because no one is trying to stop it) The government cannot silence and punish speakers just because it dislikes their expression. The First Amendment protects flag-burning; the pornography; and yes even hate speech. But it does not protect “true threats.” While the Supreme Court has never specifically defined what constitutes a true threat, it looks to the context in which the statement is made and whether the words constitute “a clear and present danger” to society. But where people used to be able to rant and rave on street corners or even make harsh comments to friends and family in in their social circles without worrying about the government overhearing, the Internet has changed all that. Many folks forget that positing is publishing and that depending on your privacy settings and how you post, you could be held to have intended for the whole world to see what you say or write.

Look at Beasley’s case again. He posted the link to the YouTube video on a Facebook page he managed which was labeled Beaz Mooga. He did not send the link to the officers, rather a different officer, working on the underlying drug and gun case performed an Internet search and found the Beaz Mooga page with links to various videos made by Beasley including “Fuck The Police.” The investigating officer then sent the link to the video to the officers named in the video. But the court focused on Beasley’s words that his “Momma” told him not to post it but that he didn’t care and that he said he didn’t care because he wanted “the city to believe me.” This case definitely blurs the line between threat and expression and while the defendant here certainly did not help himself by his own words and by his specifically targeting named officers form his case, many songs – both rock and rap – contain boasting and lack of concern for consequences. Is there any doubt that future courts will tend to side on the law enforcement side as opposed to the speakers’ side? If I were advising any artist with a pending criminal case in Pennsylvania I would certainly caution about what they put out there about their case and the police officers involved. Under this case, it would not take all that much to be then additionally charged as a domestic terrorist.